Dividing Retirement Plans

Valuing a Retirement Plan, 401K, Stock Options, ESOP or Pension

Retirement plans fall into two categories: defined contribution plans (more common) and defined benefit plans. Both types of retirement plans are considered marital assets in divorce cases and may require the use of a Qualified Domestic Relations Order or QDRO to divide the asset between the parties. This means that the portion of the retirement plan that accumulated during the marriage is subject to division in a property settlement agreement or litigated divorce.

If the wage earner was married at the time he or she started to earn retirement, then 100% of the funds in the account at the time of the divorce will be considered a marital asset and will be divided. If the wage earner was employed before marriage and had accumulated some retirement benefits, those benefits are separate property and do not need to be divided.

Properly valuing a retirement account when dividing assets in a divorce case is a math exercise. In most cases a defined contribution account will need to be valued to correctly identify each party’s marital share.

Dividing a Retirement Plan

1. Calculate the balance in the wage earner’s retirement account on the date of the marriage.

2. Determine the growth or loss on the share belonging to the wage earner and that belonging to the spouse of the retirement fund or pension account for each quarter between the date of the marriage and the “marital property cut-off date”, which often times is the effective date of the divorce decree. Certain types of plans require a Qualified Domestic Relations Order to distribute funds.

Negotiating Division of a Retirement Plan

This is a complex and time consuming calculation, made more difficult by the fact that people rarely have all the necessary statements. More often the amount to be paid to the other spouse is negotiated rather than computed. The dollar amount used in negotiations will be a close approximation. It is always wise to obtain a copy of the Summary Plan Description BEFORE negotiating a number so that any special provisions can be taken into consideration.

The knowledgeable and experienced divorce attorneys at Kathryn L. Harry & Associates, P.C., can answer your questions about dividing a retirement plan or pension account. Accessing these funds may require the use of a Qualified Domestic Relations Order (QDRO) and may be delayed due to restrictions of the pension fund itself.

You can trust the divorce lawyers at the law office of Kathryn L. Harry & Associates, P.C. to provide sound legal advice and employ pension plan experts when necessary so you avoid problems with the division of a retirement asset. Contact a lawyer to discuss the fair division of your marital property. Your initial consultation is free.

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